Assessment of Public Comments

6 NYCRR Part 490, Projected Sea-Level Rise
Comments Received from November 10, 2015 through December 28, 2015

General Support

Comment 1: Many commenters voiced general support for the approach the Department has taken in developing Part 490. (Hayward, Gladstein, Subbarama, Zarrilli, Crotty, Scatta, Gruskin, Warren).

Response to Comment 1: Thank you for your comments.

Statewide Consistency

Comment 2: Adoption of projections consistent with New York City Panel on Climate Change projections will allow for coordinated decision making and avoid unnecessary confusion of competing projections. (Zarrilli)

Response to Comment 2: The Department agrees. As described in the Regulatory Impact Statement (RIS), the projections in 6 NYCRR Part 490, Projected Sea-Level Rise (Part 490), are consistent with the New York City Panel on Climate Change Projections, and therefore will provide the benefits described by the commenter.

Additional Requirements and Regulations Needed

Comment 3: No further requirements will be imposed by this regulation and applicants need only consider climate change. We cannot understand why the adoption of scientific sea-level rise projections imposes no requirements on anyone. (Gladstein, Subbarama, Warren)

Response to Comment 3: As explained in the RIS, the Department is promulgating Part 490 pursuant to Environmental Conservation Law (ECL) § 3-0319. This provision was added by the Community Risk and Resiliency Act, Chapter 355 of the Laws of 2014 (CRRA). CRRA does not authorize the Department to impose additional requirements through this Part 490 regulation. Pursuant to CRRA, the Department, in consultation with the Department of State, is developing implementation guidance that will describe how to consider sea-level rise in the programs specified by CRRA. While Part 490 itself does not impose any requirements, it provides a common source of sea-level rise projections for consideration within the programs specified by CRRA.

Response to Comment 4: The Department received this comment after the public comment deadline. Moreover, the subject of this comment is beyond the scope of Part 490, which is limited to projected sea-level rise rather than hazard risk analysis.

In any case, pursuant to CRRA, the Department, in consultation with the Department of State, is developing implementation guidance that will describe how to consider sea-level rise, including hazard risk analysis and sources of data, in the programs specified by CRRA.

Six Feet of Sea-level Rise not Plausible

Comment 5: If the Earth is 70% water and water seeks its own level, how could there ever be more than an almost imperceptible rise in sea level, even if all the ice were to melt? (DeLong)

Response to Comment 5: The subject of this comment is beyond the scope of Part 490, as it does not address the proposed regulation. In any case, the West Antarctic Ice Sheet (WAIS) is more than 6500 feet thick and comprises enough ice to raise global sea levels about 16 feet if completely melted. The Greenland Ice Sheet is more than 9800 feet thick and would contribute about 23 feet of global sea level rise if melted. Paleoclimatic evidence indicates that melt of the Greenland Ice Sheet and possibly of the WAIS led to 13 to 20 feet of global sea-level rise when global temperatures were 3 to 5°C warmer than at present, although it would take centuries or millennia for this level of melt to occur. (Intergovernmental Panel on Climate Change,https://www.ipcc.ch/publications_and_data/ar4/wg2/en/ch19s19-3-5-2.html).

Comment 6: The Regulatory Impact Statement states that "Inclusion of unlikely but plausible projections provides benchmarks against which long-term decisions, e.g., those regarding critical infrastructure and land-use change, can be evaluated for low-probability but high-consequence events." The Alliance suggests that a six foot of sea level rise is so unlikely that it does not reach the threshold of "plausible." The Regulatory Impact Statement glosses over the uncertainty regarding the rate of future ice melt but overstates the necessity to consider the potential for more rapid ice melt. The Regulatory Impact Statement highlights aspects of the Bamber and Aspinall (2013) paper supporting its sea level rise assertions but does not address the IPCC observation that in that paper "[E]xpert estimates of contributions from this source have a wide spread, indicating a lack of consensus on the probability for such a collapse." Nor does it recognize that there is even more uncertainty related to the timing of sea-level rise in the event of a rapid ice melt event. In other words it is very unlikely that ice sheets will collapse and it is even more unlikely that sea level rise would respond if that happened to raise sea level six feet by 2100. As a result, the six-foot sea level rise projection is not sufficiently robust to be considered "plausible." (Caiazza)

Response to Comment 6: The Department acknowledges the lack of expert consensus regarding the likely rate of ice sheet melt and potential for ice sheet collapse. However, as noted in the RIS (p. 12), at least three of the 13 respondents to Bamber and Aspinall's (2013) surveys significantly increased the upper bounds of their projections between the two surveys, leading the authors to conclude there was "a growing view that significant ice-sheet instability in the WAIS could initiate in the coming century."

Regardless, Part 490 includes a range of projections of sea-level rise. The projection distribution constitutes a range suitable for risk-based planning and review of projects of varying projected life times and criticality. Part 490 explicitly defines the "high projection" in the regulation as being "very unlikely" to occur. The Department maintains that it is prudent to include a high, albeit unlikely, projection to enable consideration of the consequences of low-probability but high-consequence events. The manner in which the high projection should be considered in the context of particular projects will be addressed through the CRRA implementation guidance currently being developed by the Department in consultation with the Department of State.

Finally, in response to this and other comments, the Department substantially revised the definition of "high projection" in subdivision 490.3(i). Pursuant to this revision, in addition to being "very unlikely" to occur, the "high projection" is defined as being "associated with high rates of melt of land-based ice." This revision is intended to acknowledge the fact that, if the high projection is reached by a given time interval, it would be associated with high rates of melt of land-based ice.

Comment 7: In order for the six foot of sea-level rise projection to be considered credible, the Regulatory Impact Statement must explain why the conclusions of the IPCC in the following were ignored:

Page 1140: For the period 2081-2100, compared to 1986-2005, global mean sea level rise is likely (medium confidence) to be in the 5 to 95% range of projections from process-based models, which give 0.26 to 0.55 m for Representative Concentration Pathway 2.6, 0.32 to 0.63 m for RCP4.5, 0.33 to 0.63 m for RCP6.0, and 0.45 to 0.82 m for RCP8.5. For RCP8.5, the rise by 2100 is 0.52 to 0.98 m.

Page 1186: Only the collapse of marine-based sectors of the Antarctic ice sheet could cause GMSL rise substantially above the likely range during the 21st century. Expert estimates of contributions from this source have a wide spread (Bamber and Aspinall, 2013), indicating a lack of consensus on the probability for such a collapse. The potential additional contribution to GMSL rise also cannot be precisely quantified, but there is medium confidence that, if a collapse were initiated, it would not exceed several tenths of a metre during the 21st century (Section 13.4.4.2)[ ].

In summary, the IPCC RCP8.5 medium confidence 95% upper bound sea level rise by 2100 is 0.98m or 3.2 feet. Even if a collapse of the Antarctic ice sheet were initiated the additional SLR would be 0.3m or 1 foot for a total of 4.2 feet. RISE's 95th-percentile projection of 48 inches at the Battery by 2100 is consistent with the IPCC estimate. (Caiazza)

Response to Comment 7: The Department carefully reviewed these IPCC projections. The projections cited in the comment are based on process models that assume static or linear rates of ice sheet loss over Greenland and Antarctica.

As explained in the RIS, for numerous reasons, the Department based the projections in Part 490 on the ClimAID projections, rather than on other more conservative, less protective projections based primarily on process modeling. As stated in the RIS, the Department acknowledges that the highest projections developed by some other studies are lower than the ClimAID high projections. The ClimAID projections incorporate expert judgment of ice loss based on accelerating rates of melt and seaward movement of ice, positive feedbacks and non-linearities that are not necessarily accounted for in the process-based and statistical modeling approaches described by the IPCC.

In addition, as noted in RIS (p.15), researchers have cautioned that focusing on the most probable outcomes can lead to vulnerability or maladaptation. Furthermore, and as described above in response to comment 6, Part 490 explicitly defines the high projection as "very unlikely." Finally, in response to this and other comments, as noted above in response to comment 6, the Department substantially revised the definition of the term "high projection" in subdivision 490.3(i) to note that the "high projection" is "associated with high rates of melt of land-based ice."

Base Projection on ClimAID Report

Comment 8: State projections should be based on the ClimAID report, including a high projection of approximately 6 feet of sea-level rise by 2100. (Subbarama, Scata, Zarrilli, Gruskin, Warren ).

Response to Comment 8. The Department agrees. As explained in the RIS, the State's projections in Part 490 are based on the ClimAID report, including a high projection of approximately six feet of sea-level rise at the various locations by 2100.

Alternative Approach Suggested

Comment 9: The Department should adopt a "pledge and review" approach to establish sea-level rise policy. Sea-level rise planning values would be based on observed rates of rise at specified tide gauges during 5-year periods and would be adjusted according to the observed rates of sea-level change during the most recent 5-year period at the selected gauges.
(Caiazza)

Response to Comment 9: ECL § 3-0319, as added by CRRA, requires the Department to consider certain information in promulgating science-based State sea-level rise projections. In particular, CRRA requires the Department to consider information including, but not limited to, reports of the IPCC, the National Climate Assessment, State Sea Level Rise Task Force report, New York City Panel on Climate Change and other regional, state and local reports. In addition, ECL § 3-0319 requires the Department to update its sea-level rise projection regulations at least every five years. As required by CRRA, the Department will update sea-level rise projections through future action.

While the Department has not yet determined the precise review process it will use, the Department has concerns with the pledge and review approach suggested. The first is its reliance on a limited number of tide gauges. As can be seen from the table provided in the comments, which includes the Battery and Montauk Point, local factors can affect sea-level change at individual stations so that significantly different, even opposite, trends are indicated, even from proximate stations. Secondly, the pledge and review approach would yield planning values based only on historical trends in rise or rates of rise, whereas CRRA requires consideration of future climate risk. As described in the RIS, the rate of sea-level rise is not projected to be constant based on historical values, but is instead projected to accelerate with increased warming. Projections based solely on the pledge and review approach could be easily skewed by short-term, localized phenomena, and the approach would fail to account for acceleration of sea-level rise that would occur with projected warming.

Finally, in response to this and other comments, the Department substantially revised the definition of the term "low projection" in subdivision 490.3(m). Pursuant to this revision, in addition to being "very likely" to be exceeded, the "low projection" is defined as being "consistent with historical rates of sea-level rise." This revision accounts for the fact that future sea-level rise is not projected to be consistent with historical trends, but is instead projected to accelerate with increased warming.

Rulemaking Procedure

Comment 10: This is an improper and illegal rulemaking as the proposed regulation has no context and cannot be understood by the regulated community. (Hamling)

Response to Comment 10: The Department disagrees as this claim is incorrect. The promulgation of Part 490 complies with the State Administrative Procedure Act (SAPA) and all other rulemaking requirements. The Legislature established the context of Part 490 through the statutory language of CRRA. Moreover, the context of the regulation is further described in the RIS.

In addition, even before the formal proposal of Part 490 pursuant to SAPA, the Department held an extensive public stakeholder outreach process. As summarized in the RIS, this stakeholder outreach process included five public informational and listening sessions, at which Department staff presented background on CRRA, including the overall context of the regulation, as well as the scientific information the Department considered in developing Part 490.

As explained in the RIS, Part 490 does not impose any requirements on any entity. CRRA was enacted with the purpose of ensuring that decisions regarding certain State permits, regulations, and expenditures include consideration of the effects of climate risk, including sea-level rise and extreme weather events. Part 490 implements one component of this objective by providing a common source of sea-level rise projections for consideration within the programs specified by CRRA.

The adoption of Part 490 is the first step in the overall process to implement CRRA, as the Department is also currently preparing guidance, in consultation with the Department of State, regarding the implementation of CRRA. This guidance will address, among other things, how consideration of the sea-level rise projections in Part 490 should be incorporated into each of the permitting and other programs enumerated in CRRA. CRRA requires this guidance to be adopted by January 1, 2017. Applicants for relevant permits or funding programs will not be required to consider Part 490's sea-level rise projections pursuant to CRRA until such guidance is adopted.

Comment 11: Precluding meaningful input while simultaneously putting into place a binding requirement affecting future regulatory enactments is illegal and is an improper attempt to insulate the regulation from challenge. (Hamling)

Response to Comment 11: Through the promulgation of Part 490, the Department neither precluded meaningful input nor put into place a binding requirement affecting future regulatory enactments.

First, rather than precluding meaningful input, as explained in the RIS and in response to comment 10, the Department provided several opportunities for input on Part 490, including through stakeholder outreach before the formal proposal of the regulation for public comment. Moreover, the Department will also provide additional opportunities for meaningful input on future CRRA implementation actions, including the implementation guidance described in the RIS and in response to comment 10.

Second, as explained in the RIS and in response to comment 10, Part 490 does not impose any binding requirements on any entities. Instead, Part 490 implements one component of CRRA by providing a common source of sea-level rise projections for consideration within the programs specified by CRRA. Therefore, for this and other reasons, Part 490 does not impose a binding requirement affecting future regulatory enactments.

Finally, as required by CRRA, the Department, in consultation with the Department of State, is developing implementation guidance under CRRA. To the extent the Department undertakes any future regulatory enactments that incorporate Part 490, such future action will be subject to SAPA and other procedural rulemaking requirements, including an opportunity for public comment.

Comment 12: The regulated community cannot meaningfully comment on the sea-level rise projection numbers in the absence of the remainder of the regulatory scheme. (Hamling)

Response to Comment 12: The RIS and response to comments 10 and 11 describe the manner in which Part 490 fits into the overall scheme of CRRA. The Legislature established the context of Part 490 through the statutory language of CRRA. Part 490 implements one component of CRRA by providing a common source of sea-level rise projections for consideration within the programs specified by CRRA.

A primary reason for adopting Part 490 first, prior to the finalization of CRRA implementation guidance, is the statutory language of CRRA itself.

In any case, as described in the RIS and in response to comment 10, the adoption of Part 490 is the first step in the overall process to implement CRRA, as the Department is also currently preparing guidance, in consultation with the Department of State, regarding the implementation of CRRA. This guidance will address, among other things, how consideration of the sea-level rise projections in Part 490 should be incorporated into each of the permitting and other programs enumerated in CRRA. CRRA requires this guidance to be adopted by January 1, 2017.

As explained in the RIS and in response to comments 3, 10 and 11, Part 490 does not impose any requirements on any entity. As required by ECL § 3-0319, Part 490 establishes science-based State sea-level rise projections. In other words, the only subject of the rulemaking itself is the scientific projection of sea-level rise. As explained in response to comment 11, the regulated community can meaningfully comment on this single subject of the regulation, even prior to the finalization of implementation guidance under CRRA.

The Department recognizes that the regulated community is interested in both the sea-level rise projections numbers in Part 490, as well as the manner in which consideration of these projections will be incorporated into the programs specified by CRRA. As described in response to comment 11, the Department will provide additional opportunities for meaningful input on future CRRA implementation actions, including the implementation guidance described in the RIS and in response to comment 10. Furthermore, to the extent the Department undertakes any future regulatory enactments that incorporate Part 490, such future action will be subject to SAPA and other procedural rulemaking requirements, including an opportunity for public comment.

Finally, applicants for relevant permits or funding programs will not be required to consider Part 490's sea-level rise projections pursuant to CRRA until such guidance is adopted.

Comment 13: Although the Department's webpage states that all of the regulatory documents are available on the Department's website, the required regulatory flexibility analysis and the rural area flexibility analysis are not included. (Hamling)

Response to Comment 13: All of the regulatory documents required under SAPA for Part 490 were available on the Department's website at the time of the rule's proposal. Moreover, such regulatory documents remain available on the Department's website.

As part of the proposal of Part 490, the Department provided to the Department of State statements in lieu of a Rural Area Flexibility Analysis (RAFA) and a Regulatory Flexibility Analysis for Small Businesses and Local Governments (RFASBLG). As described in such statements, both a RAFA and a RFASBLG are not required for Part 490.

In particular, as described in the RIS and in response to comments 3, 10, 11, and 12, Part 490 does not impose any requirements on any entity. Instead, Part 490 provides a common source of sea-level rise projections for consideration within the programs specified by CRRA. Because Part 490 does not impose any requirements on any entity, it will not create any new or additional effect on rural communities, and therefore a RAFA is not required. Similarly, because Part 490 does not impose any requirements on any entity, no small business or local government will be directly affected by this rule, and therefore a RFASBLG is not required.

Comment 14: Enactment of Part 490 as a stand-alone regulation results in improper segmentation. Proposed Part 490 enacts numerical standards that will, pursuant to the express terms of the CRRA, be utilized as part of permitting requirements for thirteen (13) separate regulatory programs administered by the Department. Promulgating these numerical standards without considering the entirety of the CRRA regulatory program, as a matter of law, fails to consider the entire "action" as required by SEQRA. (Hamling)

Response to Comment 14: The Department disagrees. Pursuant to Article 8 of the ECL (the State Environmental Quality Review Act [SEQRA]), a Short Environmental Assessment Form, Coastal Assessment Form, and a Negative Declaration have been prepared and are on file for the promulgation of Part 490.

Part 490 does not enact numerical standards. Instead, as described in the RIS and in response to comments 3, 10, 11, 12, and 13, Part 490 will serve as a common source of sea-level rise projections for consideration within the programs specified by CRRA. As described in the RIS and in response to comments 10, 11, and 12, the manner in which these projections will be incorporated into the programs specified by CRRA will be addressed through the CRRA implementation guidance currently being developed by the Department in consultation with the Department of State.

Moreover, as explained in response to comment 12, a primary reason for adopting Part 490 first, prior to the finalization of CRRA implementation guidance, is the statutory language of CRRA itself. As explained in response to comment 11, Part 490 does not impose a binding requirement affecting future regulatory enactments. As explained in response to comments 11 and 12, to the extent the Department undertakes any future regulatory enactments that incorporate Part 490, such future action will be subject to SAPA and other requirements. This includes the application of SEQRA to any future regulatory enactment that incorporates Part 490, as well as to any SEQRA "action" that the Department undertakes in its implementation of CRRA.

Definitions

Comment 15: Definitions should more clearly articulate the likelihood of that rate of sea-level rise occurring. (Scata, Gruskin)

Response to Comment 15: As described in the RIS, the projections included in Part 490 are not associated with specific probabilities or likelihoods, other than the qualitative descriptions provided within each definition. Instead, the projections are based on the outputs of more than 20 global climate models, run for two representative concentration pathways and downscaled to New York. The percentiles reported by ClimAID refer to the range of model outputs, e.g., 90th-percentile means that 90 percent of the model outputs were equal to or less than that projection and 10 percent of the model outputs were greater. Because these models are not independent, i.e., a bias in one model may be repeated in other models, it cannot be assumed that the output distribution accurately reflects the probability distribution of levels of sea-level rise. Therefore, there is no way to describe an accurate probability distribution for various levels of future sea-level rise from the ClimAID projections. Rather, the Department's terminology and definitions provide a qualitative indication of the relative likelihood of the specified rise.

In addition, in response to this and other comments, as described above in response to comments 6, 7, and 9, the Department substantially revised the definitions of the terms "low projection" and "high projection." These revisions note that the "low projection" is "consistent with historical rates of sea-level rise," while the "high projection" is "associated with high rates of melt of land-based ice."